In its grounds of opposition the opponents claimed to have used the mark BABOOSHKA in the United Kingdom from 30 September 2000 onwards in relation to live entertainment events and discotheques (Class 41 services). It also claimed to have an application for a Community registration of this mark on 24 October 2000 in Classes 9, 25, 41 and 42 and that an associated company Godskitchen Worldwide Limited is currently initiating an application in the UK in Classes 9, 25, 41 and 42.

It subsequently transpired that the Community application had been withdrawn and that the UK application had a filing date later than the marks in suit. The only ground of opposition was, therefore, under Section 5(4)(a).

The opponents filed a witness statement by Mr Gary Turner, its Finance Director. Mr Turner asserts the opponents common law rights, suggests the burden of proof falls on the applicants to file evidence to disprove the opponents use and disputes a claim by the applicants that they had used their marks for a number of years. No exhibits or supporting documentation was filed by Mr Turner.

Having considered the papers before him the Hearing Officer concluded that the opponent had filed insufficient evidence to show that it had a reputation and goodwill in its mark at the relevant date. Its opposition under Section 5(4)(a) must fail. Opposition dismissed.